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| Sunday, 28 November 2004 |
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Features |  |
| News Business Features Editorial
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To hang or not to hang? by Rohan Mathes The 'Temple of Justice' has been defiled and undoubtedly needs urgent cleansing. The dramatic and dastardly assassination of high-court judge Sarath Ambepitiya last week has made the 'Rule of Law' and the restoration of Public confidence in the judiciary', a timely issue of paramount importance.
The Presidential Secretariat has made Capital punishment and the 'Death Penalty' effective with immediate effect for crimes of murder, rape and narcotic-related offences. Except for rape, no new legislation is necessary as the prevailing law is adequate for its implementation, with the will of the Executive Presidency who has turned it down since June 1976, on a prerogative of pardon. Death sentences handed out by courts since 1977, had been commuted to terms of life imprisonments. Several Civil Society Organisations, the Judicial Service Association, High Court Judges Association, senior policemen, politicians and the general public among others have strongly voiced their opinion and opted for the resumption of executions in the 'Gallows'. Critics of high-esteem and luminaries of the law however point out that 'knee-jerk' reactions in the aftermath and the shadow of traumatic events such as the slaying of High Court Judge Sarath Ambepitiya, would not result in any reforms to achieve the goals envisaged, albeit the urgent need for the same. "The gruesome murder of Ambepitiya is just one of the dramatic and striking assaults on the independence of the Judiciary and the rule of law. There are several other defects in the constitution, more subtle in nature, which needs to be identified and addressed to", opined the Head of the Legal and Constitutional Unit and lecturer of the Law Faculty, University of Colombo, and Director of the Centre for Policy Alternatives, Rohan Edrisinha, at a recent symposium at the BMICH. Rohan Edrisinha explained that the 1978 constitution in which the President had the sole authority and exclusive powers, the non-constitution of the Elections Commission to-date, the non-appointment of the Supreme Court judges and the non-implementation of the 17th amendment to realise the goals of de-politicisation are some of those salient features which needs consideration. He pointed out that the rule of 'contempt of court' and the law of 'subjudice' was over-emphasised and practised, especially in the media in a manner to stifle the independence and the views of a right-thinking society. Former President of the Bar Association of Sri Lanka H.L. de Silva, delivering his keynote address on the 'Role of the Judiciary in Contemporary Sri Lanka, at the symposium said that 'corruption' was the 'mother of all evils', but pointed out that to say the whole of the Judiciary was corrupt was grossly exaggerated and unjustified as the Judiciary still has men of unflinching courage and the highest integrity in the discharge of their services. "The time has come to cleanse the 'Temple of Justice', but no one seems to have the courage to drive out those responsible for injustice, as they are apprehensive of political fall-out. Politicians too, seem to quale in taking action" he said. H.L. de Silva stressed the urgent need of ensuring the physical security of judges in the lawful discharge of their duties. He disclosed startling evidence of a survey conducted in September 2002, for people involved in the Judicial and the Justice system, by the Marga Institute, which revealed that only 10 per cent of lawyers had faith in the system of Justice which was susceptible to corruption and subjected to long and undue delays of the law. Head of the Human Rights Commission, Radhika Coomaraswamy, focused her views at this symposium, on the legal reforms required in relation to domestic violence and trafficking of women and children, a highly vulnerable group in the society. Justice Minister John Senevirathne commenting on the recent policy decisions taken by the government at the 'Consultative Committee' meeting in Parliament to carry out the 'Death Penalty' to curb crime, said at a private TV channel that the government has not yet decided whether to bring-in the 'Nooze' with retrospective effect, including also the 47 women who have been sentenced to death in the past. He said that certain amendments would have to be made in the legislation to strengthen the hands of the Police by giving them more time for questioning of suspects in detention and in bailing procedures. Rape does not entail the 'Death Penalty' in the present law, but much representation has been made by the general public strongly, to include the same, and a decision would be taken on it soon. A UNP Parliamentarian, Professor G.L. Peiris in the same programme, opined that changes should be made in the legislation in its totality, considering a range of issues and not merely prompted by dramatic events such as the murder of the Judge Ambepitiya. Legislation should be provided for the forfeiture of the fruits of violent crimes committed, such as money or property, by the state. This needs quick implementation to prevent those perpetrators of heinous crimes living in luxury after their release from jail. Peiris also suggested mandatory minimum sentences which should not be negated, the remission of sentences, enhanced facilities to the Police such as vehicles and its mobility, drastic changes to be made in the use of fire-arms, cumulatively strengthening the criminal law in order to enhance public confidence, the hiring of assassins and mercenaries and most importantly the implementation of the law as opposed to the mere theoretical improvements of the law. Peiris pointed out that the 'Death Sentence' was in the statute books and was never abolished in Sri Lanka. It only required the Executive to fix a date and time. Two reports, one from the 'Trial Judge' and the other from the Attorney General had to be obtained. The Justice Minister would also have to consider special factors as to whether there had been exceptional cruelty, pre-meditation of the crime, mercenary involvement etc., as opposed to crime committed by emotion or sudden provocation. The issue had been analysed, dissected and debated for months on a 'private members motion', but no final decision had been taken on it. However, death sentences handed out by courts had been commuted to terms of life imprisonments since 1977. The latest amendment for the implementation of the 'Death Penalty, was the fourth since President Chandrika Kumaratunga assumed office in June 1995. Its left to be seen now, whether the 'Death Penalty' would be finally implemented amidst strong opposition from 'Human Rights' Activists and powerful and influential international organisations such as the European Union (EU), who would pressurise the government not to resume the 'executions'. ***** Commissioner General of Prisons awaiting instructions The government recently announced the re-introduction of the death penalty due to the alarming crime wawe that has engulfed the country. Commissioner General of Prisons, Rumy Marzook speaking to the Sunday Observer said that they were awaiting instructions from the government to carry out the death sentence. Altogether there are 49 condemned prisoners on death row at the Welikada and Bogambara whose appeals have been rejected by the Supreme Court. Apart from this there are another 150 prisoners who have been sentenced to death, but have appealed against their convictions. Asked whether the 49 condemned prisoners would be hanged the Commissioner General said that a decision in that regard will have to be taken by the President herself under the powers vested in her by the Constitution. The Commissioner said that they had imported new ropes to carry out the executions if it was authorised. When the death sentence was to be reviewed some time ago the then Minister of Justice, Prof. G. L. Peiris said the Sri Lankan Law consistently recognised the imposition of death sentences in respect of certain grave crimes and it was never eliminated from the statute books. However the death sentence was not carried out for more than two decades. (JJ) **** Police devise strategy to combat serious crime by Jayampathy Jayasinghe Several reforms have been initiated by the Police Department to halt the spread of violent crimes sweeping across the country. The department has a gigantic task in hand to re-train combat trained policemen in crime investigation. "There isn't a simple solution or a quick fix to combat escalating crime unless all forces join hands together. Combating crime is not the work of the Police Department alone but also of other agencies such as the Government Analyst Department and Courts. The co-operation of all these agencies are vital to combat crime, Inspector General of Police, Chandra Fernando said in an exclusive interview with the Sunday Observer. The IGP said the police have launched a new strategy to combat serious crime and the public would begin to realise it as time goes by. The IGP also took a swipe at the media and said that the public was alarmed these days owing to many television channels and national newspapers duplicating the same type of news. He said the present day crimes were different to the types of crimes committed in the past. There was a proliferation of sophisticated weapons with service deserters taking to heinous crimes like contract killing and bank robberies. Many criminal cases pending before courts often fail owing to witnesses not attending courts. The other reason being that witnesses giving evidence to the contrary, owing to forgetfulness due to long delays in law. The conviction rate too has dropped drastically as a result. He stressed that the department would take steps to train police officers in crime investigation and prosecution. However nothing can be done when witnesses do not attend courts which often results in cases getting discharged. A number of underworld hardcore criminals who had committed serious crime have been arrested and prosecuted. But many cases have failed owing to material witnesses not attending courts. There is no witness protection law in Sri Lanka, he said. The IGP said all gazetted ranks in the police including Assistant Superintendent of Police (ASP) had been instructed to conduct monthly inspections, as in the past to pin point errors and shortcomings of Officers-in-Charge of Police stations and to take remedial measures. OICs of police stations and branches have been instructed to prosecute cases in courts of law and attend courts regularly to gain proficiency in court work. In order to curb violent crimes that are taking place in the country we have hand picked capable policemen and have assigned them to specialised units." He said the launching of the 119 service was a tremendous success as several criminals have been apprehended during the past week. Prior to this service the communication gap between the public and the police were at a low ebb, as the public was frightened of being identified as informants of police due to retribution by criminals. "We like to reward the public who help us by giving information regarding criminal activity. But we are not in a position to do so as the public have remained anonymous," IGP said. The 119 facility which operates from the Police Communication Division from Mirihana is linked to all police stations in the country and operates free of charge. Any one can ring the facility from any part of the country and give information on criminal activity. The type of information has been classified to deal with emergency situations. Policemen have been provided with vehicles to get across to troubled spots as early as possible. |
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Civil Society Organisations, the polity of the Judicial Services and
those wielding political power are come together in their concerted effort
to prepare a 'Road Map for Judicial Reforms', clearly indicating a
prioritised list of relevant reforms and specific recommendations.
